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Thomas: Hello and welcome to Opening Arguments, this is episode 438 and it’s named for the amount of votes that Gore lost by in Florida in –
Thomas: No, that’s deep, weird joke. Anyway, how’s it going, Andrew?
Andrew: I am so much happier after your deep weird joke! I’m fantastic Thomas, how are you?
Thomas: [Laughs] I bailed out halfway through it, didn’t even really make sense.
Andrew: That’s okay.
Thomas: I’m doin’ okay. Not in love with how things have developed. Your North Carolina optimism was euthanized [Laughing] pretty quickly right after you said it.
Andrew: Yeah, we’re gonna talk about that.
Thomas: Andrew was like hey maybe a good thing? And the world was like, nah, sorry. [Laughs]
Andrew: Nope! [Laughs] Look, you know, we can no longer say definitively that we are in the worst possible timeline.
Thomas: Oh, that’s true. Yeah, we’re not in the wor- unless there’s some – hold on! I’ll find a way! [Laughs]
Thomas: What if he loses but then takes back over by coup? Which is what we’re gonna talk about today. We’ll have to find out if there’s any chance that this is really just a fake good thing in service of a worse thing.
Andrew: [Laughing] Fake, it’s just – yeah.
Thomas: So that is the subject of today’s episode, I’m sure it’s on everybody’s mind. As much as Andrew has told us throughout the, I don’t know, the years? [Laughs] There’s a system and things matter, we’re gonna put that to the test and find out if there’s a system and if things matter according to Andrew Torrez.
We’re also going to do a little update on the – I’m really curious Andrew’s thoughts on the Obamacare case ‘cuz the whole media decided that the justices are gonna rule the way we would want them to on this and maybe they’re right, maybe they’re wrong. We’ll see. Any announcements from you, sir?
Andrew: Two things that I think are positive, continuing my Optimist Prime theme. First, we’re recording this on Thursday, November the 12th and that meant yesterday was Veterans Day and we have a lot of veterans, a lot of veterans who are OA listeners and who are the sorts of veterans that the Trump administration declared war on.
Andrew: I’m just really, really looking forward to being able to kind of recapture genuine patriotism and to be able to say to people who have put their lives on the line for our country that, you know, we hopefully have a government coming in that isn’t going to use you as a prop and then look for ways to deny you health coverage, kick you out of the military, etcetera etcetera. All of that is a long-winded way of saying happy Veterans Day to our OA listeners who are veterans!
Thomas: I wanna do happy Veterans Day but instead of symbolic stuff that does nothing let’s, like, give them better healthcare or…
Thomas: You know, yeah. Do something.
Andrew: That would all be nice, yeah.
Thomas: Let’s all pool our resources and, I dunno, some form of taxation or something and put that to – we’ll figure it out. Anyway, alright – and then also, hold on! Big announcement.
Thomas: Last one was a huge hit. We’ve got a sequel, another “No Trump Tuesday” comin’!
Andrew: Yeah! I’m really, really excited. Thomas, you know I argued very, very strenuously for us to do a baseball law and eminent domain this Friday!
Thomas: Nah, we’re not there yet. We’re not there yet, man.
Andrew: We’re not there yet.
Andrew: We are not there yet. But we are at a point where, you know, if you’ve got friends who have needed to pause the show to get, you know – we get it. Tuesday is gonna have a baseball law segment, it’s gonna have a celebrity segment, and it is gonna have a classic OA style deep dive. I’m gonna make a prediction that is gonna knock your socks off.
Thomas: Ooh, can’t wait!
Andrew: Look forward to Tuesday! It’s … not the happiest of predictions.
Andrew: [Laughing] Buti it is not Trump related!
Thomas: Leave it to Andrew to get us excited about the fact that he’s gonna predict the next horrible thing to happen. Okay!
Thomas: I’m excited about that, No Trump Tuesday last time worked out really well, people loved that.
Thomas: I’m excited to do it again. So, just think, in a few short months could be a lot of those!
Thomas: Could be more of those than ever! And Andrew, quick note, just wanted to give a quick plug, I know I do it sometimes, but SIO, Serious Inquiries Only, my podcast, I just released one where I did a ton of number crunching on House races to find out whether or not progressive policy either cost us seats or won us seats. There have been a lot of claims thrown around. Spanberger was really mad about the progressives and then AOC fought back in that New York Times interview and I wanted to do my best to evaluate that, so I did a lot of number crunching, came to some conclusions. If you wanna hear what that is, check out Serious Inquiries 264.
Andrew: Oh, ohh! What a cliffhanger! Well, I’ve had some access to the really in-depth work that you did on that episode, I’m very excited about it.
Thomas: Yeah, spoilers, AOC is probably right. [Laughs]
Andrew: Yeah! Of course she’s right on that. That being said, I think it’s pretty intuitive that mmm? Maybe the most progressive elements of the Democratic party platform are not what you wanna emphasize in a runoff election in Georgia where Democrats – where Ossoff at least, and I think also Warnock, ran behind Joe Biden. We know they ran behind Joe Biden statewide and behind the Republicans. Eh? Anyway, all of that is to say I’m super interested for SIO 264.
Breakin’ Down the Law: Supreme Court and Obamacare
[7:10.8] [Segment Intro]
Thomas: So, Andrew, yeah, the whole media at once, and maybe they’re right, I can’t wait to hear what you think. It was really weird because multiple news flashes and headlines all seemed to say “well, looks like the court’s gonna uphold the Obamacare challenge” or whatever the proper phrasing would be. You’ll explain to us. Is that true? What’s happening here?
Andrew: Here’s what happened. We had oral arguments in California v. Texas, which is a consolidated case involving challenged to the Affordable Care Act. It’s basically two links in a chain. The first argument is the individual mandate is now unconstitutional because in 2017 as part of the budget reconciliation process, the first year of the Trump administration reduced the tax required if you failed to purchase health insurance in accordance with the individual mandate down to $0. The Supreme Court clarified in NFIB v. Sebelius that that was a tax and not just a mandate, a use of the government’s general regulatory power under the Interstate Commerce Clause, which was an insane decision which we told you about over and over again.
In any event, argument number one is okay, Supreme Court in 2014 said that was a tax, but it doesn’t makes sense to have a tax that’s zero, so that should be unconstitutional. That part of the ACA should be invalidated, declared unconstitutional. Argument number two, the second link in the chain, is what’s called a nonseverability argument and it is the argument that oh, by the way, once you strike out the individual mandate you have to invalidate the entirety of the ACA, including the provisions – and we’ve talked about this previously on this show – that provide for protection for preexisting conditions.
One of the [Sighs] most frustrating things about the Presidential and Vice Presidential debates, as I believe I’ve commented here is that Donald Trump, Mike Pence, both muddied the water with an absolutely blatantly false lie of “oh well no, we have a plan to protect people from being discriminated against on the basis of preexisting conditions and we’ll show it to you just as soon as you reelect us.”
Thomas: You know, he’s probably just about to release his healthcare plan.
Thomas: I bet it’ll be – [Laughs] That would be the ultimate practical joke. January 24th he’s like “got the plan! I got it, it’s detailed!” And it actually is several binders worth. “We were working on it that whole time!”
Andrew: [Laughs] That and his taxes, we’ll all get on January 18th.
Thomas: [Laughs] It’s a routine audit, Andrew. A routine audit.
Andrew: [Laughs] It sure is!
Andrew: No, so the frustrating thing is – and again, I’m not trying to Monday Morning Quarterback the debate performance, as we did that [Laughing] the day after the debate. Biden did great in the second debate, but it was frustrating to watch that lie pass through and not have Kamala Harris look over and go “Mike, all you have to do is call up Bill Barr and tell him not to show up next week in California v. Texas.”
Andrew: You can stop this! We don’t have to put this at risk, it’s your administration that is challenging the entirety of the ACA in court, it’s gonna be before the Supreme Court the week after the election. Interesting timing. That would’ve been a nice aside but, you know, didn’t happen.
Andrew: Republicans continued to lie and say “oh yeah no, we’re absolutely for protecting preexisting conditions.” Black and white, they have argued and defended at oral argument the idea that the Supreme Court must strike down the entirety of the ACA and make everybody start over again. That’s what they want, that’s what they’ve argued.
Now, what happened? We’ve had oral argument, and again I wanna be super clear about this. I think trying to read the tea leaves from what happens at oral arguments is a terrible, terrible, terrible idea.
Andrew: I’ve been wrong on that before. [Laughs] Andrew Seidel and I kinda went back and forth on, he said “look man, the oral argument in Trinity Lutheran went super bad” and I said “well, you know, but the law is really, really clear.”
Andrew: And he was right and I was wrong. There’s that grain of salt, but we have no ruling. Here’s what they’re going on, and I will link, by the way, the audio and the transcripts for this Supreme Court oral argument so that, you know, if you wanna listen you can listen and make the judgment for yourself.
Here’s what happened: there were multiple questions from the Supreme Court’s conservative wing, beginning with Chief Justice Roberts but echoed by Justice Kavanaugh. I’m gonna read those questions to you on that second part of the prong, saying “are you sure that your arguing that the entirety of the ACA is non severable from the individual mandate such that if we strike down the individual mandate, we have to strike down the whole law?”
Roberts says, “Here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.” Invited, then, the parties to dispute that, which they did. I’m not gonna go through and read the way in which lawyers for both sides responded to that, but they had responses to that. That’s calling for a response. Roberts said, and I think this is certainly correct, [Laughs] “I think it’s hard for you to argue that Congress intended the entire Act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the Act.”
Andrew: Then says, “I think, frankly, they wanted the Court to do that. But that’s not our job.”
Andrew: A rare moment of candor.
Andrew: Clearly that’s what they wanted. The idea was they just narrowly got the tax bit passed, they lost McCain on striking down the entirety of the ACA – not even striking down the entirety but the skinny repeal. You know, so they had to sneak it in and Roberts is correctly describing those shenanigans, “we hope this will die the death of a thousand cuts, and by the way we’re gonna stack the court with a bunch of right wing judges, like you Chief Justice Roberts, we hope you’ll do our job for us.” Rare moment of candor.
Thomas: So, it sounds to me like John Roberts is going to be a really solid 4th vote in the 5-4 dissent. Cool!
Andrew: I think that’s-
Andrew: That would be where I would bet. The other statements from Kavanaugh and Thomas are, in my view, much more ambiguous. Brett Kavanaugh says (quote) “It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the Act in place, the provisions regarding preexisting conditions and the rest.” Brett Kavanaugh displaying all the sensitivity of somebody who’s had government sponsored healthcare for the last 30 years of his life.
Anyway, and Clarence Thomas saying “The individual mandate now has no enforcement mechanism, so it’s really hard to determine exactly what the threat is of action against you.” Those are being read as echoing Roberts. I don’t think I necessarily read them that way.
Andrew: I read that as saying that the linchpin for you to win on point two is to win on non-severability, which is just restating the position of the case. It doesn’t say “we have held this is clearly severable,” it just says if this is severable than we can clearly craft relief, isn’t that right? That’s true. If it’s severable they can clearly craft relief, which by the way would still be really, really bad.
Let me take a brief sidebar on that. If the Supreme Court grants prong one 6-3, which I think they will, and declares the individual mandate unconstitutional, what that prevents Joe Biden from doing is it prevents Joe Biden, with a Democratic Senate of using the budget reconciliation process in 2021 to reinstate the individual mandate.
Thomas: Hmm. Cool.
Andrew: It means that now you have to go back and work through the filibuster or repeal the filibuster or whatever. It throws an additional roadblock up to undo what Donald Trump did in the first place.
Thomas: So just to make clear, they were able to undo this with that.
Thomas: So, it’ll be that you can take it away, it’s a – it’s a ratchet? It’s a one-sided ratchet.
Andrew: [Laughs] Yeah, it’s a one-way ratchet down-
Andrew: Which is the exact opposite of how ratchets are supposed to work.
Andrew: It’s terrible! And nobody is focusing on that. That this is the court stepping in and being like “okay, you moved that to zero now it’s unconstitutional.” Why the argument is not more persuasive of yeah, a Republican congress with a Republican President reduced it to zero, a Democratic congress with a Democratic President might reinstate it.
Andrew: Who the hell knows? And the idea that the second that you want [Laughs] And again, think about this from a judicial restraint versus judicial activism perspective. The idea that you want the Supreme Court to come in and actively start minesweeping, start declaring parts of statutes unconstitutional based on things that the legislature may go back and forth over, is an unbelievably overbroad, overreaching, activist view of the court. But you know, buckle up ‘cuz we’re in for a lot of that.
Thomas: This strikes me as a pretty textualist argument. Is there a chance that Gorsuch lands on our side?
Andrew: Here’s the thing, all of the arguments being raised here are terrible.
Andrew: And again, yeah, you know, we’ve lost all the Uncle Franks listening to this show except [Laughs] that one guy who keeps changing his patron name. Good for him!
Thomas: Well ever since we stole the election for Biden it just put those Uncle Franks off.
Andrew: [Laughs] Fair enough.
Thomas: Sorry about that, we had to manufacture millions of votes.
Andrew: Look, I do not have time in this segment. If you want, and in fact we’ll do a deconstruction when the Supreme Court strikes down at least the individual mandate and maybe the entirety of the ACA come next Spring, but these arguments are embarrassingly bad. As you are starting to calibrate to what extent are any of the right-wing justices interested in the law anymore? If they’re all in the 99s, you’re trying to determine who’s the 99.1 and who’s the 99.7? This is gonna be a really good litmus test for this because these arguments are virtually indefensible.
What you’re seeing – and this kinda brings it full circle then we’ll move onto our main segment, that’s what you saw at oral argument. You saw the lead attorney for the red states that brought this suit in the first place. That is Texas Solicitor General Kyle Hawkins. You saw him struggle to defend the indefensible, because these legal arguments are so terrible. I agree with that, he did a real bad job. These arguments are super duper bad, but I’m not convinced that his failure to articulate that is gonna stop enough of the activist wing of the court, and if it does it’s gonna be a roadblock only on the severability portion.
Look, the argument that the individual mandate is unconstitutional is also a terrible argument, and I think we have no shot of winning on that. That’s my way of throwing some cold water on some positive headlines and you know, everybody can root for me to be wrong on this. I would sure love to be wrong.
Thomas: Okay, well I’m glad I’m not crazy for thinking it was weird that all the media decided this. They were like “oh, looks like these right-wing hacks are gonna go the right way we’ve all decided.”
Thomas: That’s weird, why did they? Just ‘cuz oral arguments went a certain way they all said that?
Andrew: Yes, that’s exactly right.
Thomas: Well, who knows. Maybe they’ll be right. I guess we’re rooting for them to be right.
Andrew: We absolutely are.
Yodel Mountain: Attempted Coup?
[20:47.0] [Segment Intro]
Thomas: Andrew, you just heard the yodeling, maybe for the last time? I don’t know. I know we’ve got a lot to cover but quick second for the sake of the show and the listeners who’ve been with us, we never would have thought – Andrew never would have told you that the yodeler would only fall off the mountain January 20th, 2021 when Trump lost. That’s not what we went into that thinking, is it?
Andrew: Yeah. That’s fair.
Thomas: But that’s where Yodel Mountain ended, everybody. Not with a bang but with a WI-MA-PA?
Andrew: Right. [Laughs]
Thomas: What was it? [Laughs] That was a really funny meme. But we’re playing that yodel music because he hasn’t fallen off the mountain technically yet, so Andrew, there’s a … I love that I sometimes try to summarize news stories. Let me just summarize it and throw it over to you, Andrew. We’re in the middle of a coup attempt of our government, what’s your take on that? [Laughs]
Andrew: Yeah. We are, it’s gonna be fine. It’s gonna be fine and I’m gonna talk you down from the ledge. Share this out with all – there is the same terrible unreliable far left sources that we’ve been telling you to ignore leading up to the election are feeding ridiculous disinformation now that the election is over.
Thomas: Uhhh … Okay.
Thomas: I mean, let me – worrier’s advocate, here.
Andrew: Yeah, yeah yeah.
Thomas: The President and the Republican party, not to mention the guy who’s like “yeah, we’re transitioning to a second Trump administration.”
Andrew: That was Pompeo.
Andrew: Our Secretary of State, yeah.
Thomas: Yeah. That’s not left-wing propaganda, Andrew, that’s just things that are happening.
Thomas: I don’t blame people for maybe being a little worried that there could be some problems here.
Andrew: I agree with all of that. I agree with the observation as to what Donald Trump is doing. We’re actually – we’ve got this whiteboarded out a little differently, but let’s stick with the topline question then I’m gonna go through, I’m gonna talk about the supporting evidence for my position. The supporting evidence for my position that it’s gonna be fine is to go back to the doomsday scenario that – which was the first time when I told you maybe it’s not gonna be fine. [Laughs]
Andrew: That was Opening Arguments episode 425, that was the article in the Atlantic, “What if Trump Refuses to Concede?” And we went through and broke down not only that article but the compelling legal arguments that underly that article. Pulitzer Prize winning journalist, but he was stitching together the legal arguments of scholars that I respect. We pointed you to, in addition to that, Neal Buchanan’s article, “The Really Bad News About Trump’s Election” which he posted in June. The critical aspect that made this a doomsday scenario was what if Donald Trump is able to sew genuine doubt about the results? That’s the key linchpin. The primary data point underlying that was the blue shift analysis that we’ve been talking about for two months.
Andrew: First and foremost, as I said in OA 425 and it is worth repeating here, we owe a debt of gratitude to Neal Buchanan, to The Atlantic, to everybody who raised this as an issue and who smacked me upside the head and said “hey, take this seriously, we’re not just talking about Donald Trump going into a bunker and pretending like he’s still the President, we are talking about active efforts to gaslight America into believing that he won when he lost and here are some of the tools that we take into account.”
Because of that we were able – and we played a tiny role in this – we were able to influence the national discussion to talk about what blue shifting means, such that when Trump was ahead by 12 points in Pennsylvania and 5 points in Wisconsin in the middle of the night on Tuesday, the idea of “okay well it’s over those states are Republican states, Trump wins,” none of the networks called those states, not even Fox News ran with that narrative. We had successfully managed to describe the way in which votes are going to be counted.
Now that’s where we are today. I’m gonna link in the show notes, I have shared it out of our Twitter feed, Reuters poll from yesterday, 80% of the population believes that Joe Biden won the presidency. That means an overwhelming majority of people that voted for Donald Trump believe that Joe Biden one. Now, look, as people replied on our Twitter feed, if I said “is the sun hot?” – and it’s 79%, let’s make sure, I’m rounding up.
Andrew: And [Laughing] 79% said yes and 16% said no and 5% said I don’t know (those are the percentages, by the way on “did Joe Biden win the election”).
Andrew: Admittedly, it’s terrifying that a fifth of the country does not know whether the sun is hot, okay? We have a lot of problems. We got a lot of bad stuff going on, but the fact that Donald Trump has lost the narrative on Fox News, the fact that a majority of his supporters do not believe his claims, and, as we get into the evidence, the fact that he has no clear path to be able to translate that in any compelling way because he needs – what we saw, what I underestimated about Trump, this is the story of the death of Yodel Mountain.
Andrew: What I underestimated about Trump in 2017 was the degree to which he was going to exercise a complete stranglehold on the Republican party.
Andrew: That is going to be – we’re gonna spend the next 10 to 20 years piecing through the evidence on that as cowards, and make no mistake, anybody, John Bolton types who were party to this and hung around and waited for Trump to lose and then came out, they are cowards. But those cowards are going to crawl out of the woodwork and we’re gonna figure out what Donald Trump has on Lindsey Graham.
Thomas: I never would have thought, my whole thing was like oh, look, here’s what’s gonna happen, Trump’s gonna lose and then a bunch of cowards will be like “well, I never was very happy with Trump to begin with.” I never would have thought that was the more brave thing? That actually they would still be trying to appease him? I wonder how much of that has to do with, you know, they want him to not just totally rage quit before the Georgia runoffs? I dunno if that could be a part of the calculation?
Andrew: I think that’s part of the calculation, but to me I think the main part of the calculation – since I’m about to be super optimistic, let’s be clear about what to be pessimistic about from this election, which reiterates what we said on our first post-election show. This election was not a repudiation of Trumpism.
Andrew: It was a validation. It was to say if you run on overt racism then you will overperform your polls. That’s the lesson if you’re a Republican, so all of these people are looking at it going “well, I’m gonna inherit the mantle of Trumpism. I’m gonna get all of his Q-Anon loving supporters and they’re gonna back me next time and I’m gonna be unstoppable.” That’s terrifying and we’re gonna have to fight this battle continuously.
The first step in that battle, we’re gonna talk about this more in the C segment, is winning back the Senate.
Andrew: Is beating Trump supporters in Georgia in a runoff election. That’s where I’m putting 100% of my political initiatives and energy for the next 7 weeks, it’s where I would encourage you to do that as well. To get there, let me tell you why. That’s my overarching case.
The overarching case is the case for a Trump coup was based on a lot of different things clicking into place but the fundamental topline was being able to argue with a straight face that the election results are ambiguous. Trump’s lost that. His arguments that the election is ambiguous or that he won, they are preposterously terrible arguments right now and every time you make those preposterously terrible arguments somebody who’s 35 who’s got to carry them out is sitting there going “uh, I’d like to be governor of Pennsylvania someday and if perjure myself in open court in support of this nonsense that isn’t gonna work anyway, I’m not gonna get there so I’m not gonna do that.”
Andrew: That’s, you know, what made Trumpism possible was a complete cooptation of the mechanisms of power of every Republican all the way down to your 18 and 19-year-old staffers. What’s making it impossible right now is that same institutional process. I know, not enough rats have left a ship that is not just sinking but, you know, those Trump boats that we saw from the parade.
Thomas: [Laughs] Yeah.
Andrew: They are underwater, they are crashed, they are destroyed, it’s ridiculous. We should be seeing more rats, we’re not.
Thomas: Yeah, we’re seeing a bunch of rats who are like “no, the ship is fine. Not sinking. It actually is higher above the water than ever.”
Andrew: Let’s talk about the lawsuits and the Supreme Court. Again, I think that this is important to emphasize because hopefully people will share this out with people who haven’t been with us for 439 episodes.
Andrew: The Supreme Court isn’t magic. In order to award relief, the Supreme Court must have before it a justiciable case or controversy, and courts don’t decide, they don’t issue advisory opinions, they don’t decide questions in the abstract. All of that is to say you cannot just file a letter with the Supreme Court that says I want you to make me the President. Now George W. Bush did that, but he was able to do that because he had a case that could award him that relief.
Andrew: He had the Supreme Court of Florida said “we’re going to award recounts in these three counties” and George Bush’s legal team looked at that and said “gosh, if we do that I’m probably going to lose Florida and therefore the election so I’m going to go to the Supreme Court and I’m going to ask them for a thing that the court can do.
Andrew: Something the court can do is tell a State Supreme Court that it’s violating the constitution. Now go listen to Opening Arguments episodes 1-4 if you haven’t. That decision was travesty, was politically motivated, was by its own terms not to ever be cited as precedent for anything ever.
Andrew: It was very clear, the Supreme Court split 5-4 and not Democratic and Republican appointees because David Souter sided with the liberals. But politically, despite the fact that David Souter was a George H.W. Bush appointee. [Laughs] So that’s a rough one, right?
Andrew: Thanks to your dad for putting me on the court, but George W. Bush-
Thomas: But wow, that’s awesome. He has some dignity, didn’t wanna steal an election for somebody.
Thomas: That’s cool.
Andrew: Yes, I agree. We could use a lot more Souter’s these days. So, the Supreme Court could award the election to George W. Bush in 2000 because it had the power to do the thing that it was being asked to do.
Andrew: The cases that are being teed up right now are so bad that there’s nothing the Supreme Court can do. I’m gonna take the best one, okay, and I looked at 11 separate court decisions in preparation for today’s show. I picked the one that has not instantly been dismissed, although I checked it right before we started recording. That decision is expected to come out as we are recording this episode, so this will probably be dismissed by the time I’m telling you about it, but it’s still illustrative.
This is their best case, and their best case is a total loser. Okay? It’s a total loser all they way up to Amy Coney Barrett. Here’s why. This case is called Trump v. Montgomery County, it is filed in The Court of Common Please in Pennsylvania, the state trial court. I’m going to upload – I’ve already uploaded on our website, it’ll be listed in the show notes, the transcript. You can read this transcript and I’m gonna quote from it in some places, but you will see just how bad these arguments are. Trump is going to lose this lawsuit as he has lost every single lawsuit that was filed.
Thomas: Oh yeah? But there was one where they said the poll watchers could get a little closer that one time.
Thomas: So therefore, he’s won one and has a case, right?
Andrew: [Laughs] Yeah.
Thomas: I’ve seen that argument made.
Andrew: That’s a great argument.
Andrew: He’s lost – again, the completion of the sentence, every lawsuit he has brought challenging particular ballots, seeking relief to get counting stopped or to get counting restarted, to throw ballots out, to count other – he’s lost every single one of those.
Andrew: Yes, he won a case in Pennsylvania that allowed his howler monkeys to get closer to people in a pandemic and spit on them, and I wish he’d lost that one too.
Andrew: Because I kind of would like for us not to have an outbreak of COVID among poll workers, but whatever, fine, you know.
Thomas: Now I’m not a lawyer, is 0 for 11 good in legal terms?
Andrew: It’s not. It’s really not that great.
Thomas: Not good, okay.
Andrew: What’s at issue in Trump v. Montgomery County? Donald J. Trump has challenged 592 ballots. I wanna put this into context for you, Montgomery County, Pennsylvania received over 500,000 votes cast. It split 60/40 for Biden, that was a 130,000-vote margin. Roughly half of those were votes by mail, almost 250,000 votes cast by mail. Of those 250, that’s 243,692 as of this record. Of those 250,000 votes by mail, Donald Trump’s legal team has found 592 that they wish to challenge.
Andrew: That is, if you are good at math, less than one-quarter of one percent.
Andrew: Here’s what they have challenged. These are being challenged due to various technical defects on the ballot, and not even on the ballot, on the envelope that the ballot was put in. In Pennsylvania, different counties do it different ways, but basically, they mailed you your mail in ballot, you fill out the ballot, you fold it up, you put it in and then you put it in the special envelope, the envelope has a declaration on the back. The declaration says “I am authorized to vote in the state of Pennsylvania and I certify by mailing this that I have not voted in person.” I’m not voting twice.
Then, although the ballot came to your address, you are also, there’s a line for you to write your address and sign it and date it. These are ballots that are either missing in whole or in part some of that information. For the most part it is people who failed to copy all of their address, number for number, line for line, that was already listed on the ballot, over onto the declaration form.
This is what we are talking about. We’re talking about it comes to your house at 123 Fake Street, Sacramento, CA-
Thomas: Dude don’t dox me, come on!
Thomas: Wow, okay.
Andrew: And you write “123 Fake, Sacramento, CA” and you don’t put in the zip code. That’s what we’re talking about.
Andrew: That level of-
Thomas: Therefore, you shouldn’t have the right to vote. Seems totally not evil to me.
Andrew: So, you’re thinking oh, okay, surely I am parodying their argument.
Thomas: [Laughs] I wasn’t! But yeah.
Andrew: I know.
Thomas: One could be thinking that, I guess. [Laughs]
Andrew: One could think that. Donald Trump’s lawyer, page 14, read it for yourself, when the court says “you’re really saying because it might not match up on the address you want me to throw all these votes out?” His lawyers says “yes we want you to throw all these votes out,” then he adds (quote) “Certainly if the Court is going to deny my motion in its entirety on that basis,” which, by the way, never a great sign when you’re five minutes into oral argument and you’re like “look, I’m probably gonna lose, so uh, don’t throw out everything, you could just throw out a subset of what I’m going to lose on.”
I’m actually gonna read a little bit beforehand.
The Court: “So your answer is that all 592 ballots should be invalidated?”
Mr. Golstein (that’s Trump’s lawyer): “Correct. Yes, Your Honor.”
The Court: “And there should not be a separate analysis for the subsets of different types of irregularities that may exist on some ballots?”
Mr. Golstein: “Certainly if the Court is going to deny my motion in its entirety on that basis, I would look for perhaps smaller subsets that the Court might find appropriate to strike. If you were to say, for example, I am not striking these on the basis that an address is missing, I would want the opportunity to strike the ones where the date is missing or wrong”
Andrew: Or wrong!
Andrew: “- or somebody wrote, for example, their birthdate or where the signature is missing or, you know, illegible, things like that.”
Andrew: Right. That’s the Trump campaign’s argument. If you screwed up in any way on the ballot, your vote should not count in Montgomery County, Pennsylvania. And why shouldn’t it count in Montgomery County, Pennsylvania? Because it went 60/40 for Joe Biden. That’s their argument. But, fortunately, their view of the law is terrible and wrong and they have no chance in hell of winning on this argument.
The law, what’s it say? 25 Pennsylvania Statute § 3150.16 says after you receive your mail in ballot (quote) “The elector shall then fill out, date and sign the declaration printed on such envelope.” (End of quote). Then it goes to, this is § 3150.14, “Form of declaration,” that declaration must contain “a statement of the elector’s qualifications,” that is that they’re eligible to vote, “together with a statement that the elector has not already voted in the primary or election.” Those are the only things that are required by law for the voter to fill out. “I certify that I have not voted in the election and that I am eligible to vote in this election.”
Then it’s up to, this is § 3146.8(g)(3), (quote) “If the county board has verified the proof of identification as required under this act” that is, they’ve matched it with the bar code “and is satisfied that the declaration is sufficient” then the vote counts. In other words, it’s up to the board of canvassers to look at it and go “did this guy fill out his declaration? Okay, looks like he did. Did he put 11/4 when he should have put 11/2? Whatever.”
Thomas: Yeah. There’s some chance that meant he was voting in a different election on a different day. [Laughs]
Andrew: Yeah, it’s like when you write 2019 on your check.
Andrew: This is such a bad argument that this is how – this is now page 5-6; this is what their lawyer has to say. This is it. No citation to any authority whatsoever, no citation to the law other than this. “You know, in terms of the substantive argument, the mail-in balloting, the ballot counting statute at 25 P.S. 3150.16(a)” that’s what I just read to you, “says in pertinent part: The elector shall then fill out, date, and sign the declaration. The Court has before it a narrow question: Does ‘fill out’ mean anything other than what its plain language calls for, and do we need to look anywhere else to understand what ‘fill out’ means? I submit we do not need to look elsewhere. The meaning of the language is self-evident. If a doctor’s office hands you a form and tells you to fill it out, and you hand it back with blanks, they will tell you, ‘You didn’t fill it out. Go finish it.’ Fill it out means just that.”
That is the Trump administration’s argument to throw out ballots in Pennsylvania. It is “well, fill out means fill out all of it and if you screwed up any part, we get to throw your ballot in an incinerator.”
Andrew: [Laughing] “And by the way don’t look at any of the other laws ‘cuz you should go by my folksy analogy from the doctor telling you to [impersonation] “fill out the form” as opposed to what the law actually tells you to do. They’re going to lose on that. But the delightful part is even if, even if, the Trump administration were correct-
Andrew: That “fill out” means “fill out in its entirety” the question would then be fore the court what’s the remedy you get? And the remedy you get when a voter screws up part of the ballot is not “we pretend like that voter has been vaporized from space by a giant laser.”
Andrew: The remedy you get is appropriate to redress the wrong.
Thomas: So, like, does the voter get to fix the date on the ballot? [Laughs]
Andrew: Yeah, that’s right! Here, again,
Thomas: This is a crack legal team, Andrew! Wow!
Andrew: This is amazing. I’m going to quote you from – and by the way, all the arguments I’m making are arguments that were made by the State of Pennsylvania. I wish I could take credit for coming up with the legal analysis that dismantles this, but it’s already been done.
Andrew: This is why I’m 100% confident that, you know, as we record this that relief is gonna be denied. So, the State of Pennsylvania replied with “yeah, the only problem with this is that it’s been clear for 50 years in the State of Pennsylvania that these kinds of technical errors don’t mean you throw out the ballot.”
Andrew: That comes from a case called In Re: Recount of Ballots from 1974. It comes from a 1973 judicial election for the Beaver County Court of Common Pleas, which is a state trial court in Beaver County in Western Pennsylvania, it’s a Pittsburg suburb. By the way, these are the kinds of cases in which recounts matter. This involved Republican Robert C. Reed, was trailing the Democrat Joseph S. Walko, and then after opening up a whole bunch of ballots Reed went ahead 30,598 to 30,591.
Andrew: Look, when you lead by seven ballots-
Andrew: Yeah! Recounts matter! You look at [Laughing] every single ballot that’s out there. As it turns out, Walko won on election night but after the recount Reed won. Yeah, seven votes you can overturn. Trump is down by 54,000 in Pennsylvania.
Andrew: A recount has never overturned 54,000 votes.
Thomas: It would be funny if the court was like “you know? Sure, you can have ‘em”
Thomas: In fact, two for one deal. Take a thousand votes!
Andrew: [Laughs] Take two, they’re small!
Thomas: Just, we’ll give it. Just credit, on us, it’s on the house. A thousand ballots. Are we done here? We’re done. Can we end this election madness?
Andrew: The fact that the courts aren’t doing that is part of what underscores my larger point, which is that courts can only rule on the questions that are before it.
Thomas: Yeah, right.
Andrew: They have to pretend to take this seriously. And they are.
Thomas: Here’s what I was worried about.
Thomas: They come up with some, you know, something better than this 512 ballot nonsense, crap, we all know it’s still nonsense crap but it gets killed going up the chain of appeal all the way up to the hack Supreme Court who says “yeah, up is down, we rule in favor of you.” That’s what I think I and other people were a little worried might happen. But are you saying there’s just no physical way for that to actually happen?
Andrew: Yeah, I mean I’m saying that those lawsuits have to get filed. That’s certainly what they’re trying to do.
Andrew: But there is – so there’s a rule in the Federal Rules of Civil Procedure, it is Rule 11. You’ve heard me mention it before.
Thomas: Oh yeah.
Andrew: States have their own equivalent. When you have a lawyer, even a terrible, bad, awful, lawyer, they will think twice before they will file something they know is legally and factually false because you can be sanctioned, you can be disbarred, and courts are – again, it’s super rare, but like I’ve said I’ve won sanctions arguments in court.
Andrew: It’s not that rare. When lawyers engage in substantive misconduct-
Thomas: Well somehow Larry Klayman is still a lawyer though.
Andrew: I get it, I get it, and Sidney Powell and Rudy Giuliani. Look, that’s what they’re up against. Even finding these bottom tier lawyers – and we’re gonna talk about the controversy over Jones Day and some of the other big law firms that are bailing on Donald Trump. Jones Day is not gonna submit a pleading that it knows is false on its face, that would be disastrously bad because that would adversely affect its malpractice insurance.
Andrew: And they have 85,000 lawyers. That’s an exaggeration.
Andrew: They have thousands of lawyers, Jones Day has thousands of lawyers worldwide, so yeah, if they double their malpractice insurance because a court sanctions one of their lawyers for filing a patently false declaration in court?
Andrew: Yeah! That could cost them tens of millions of dollars.
Thomas: Saved by insurance! [Laughs]
Andrew: Yeah, absolutely!
Thomas: Who would have though?
Andrew: So the way to unpack all of what you’ve said is, yes, I share with you the fear in the abstract of you need bullshit lawsuits in Pennsylvania, Michigan, Wisconsin, Arizona, and Georgia and then you need for them to all go up and somehow all get in front of the Supreme Court and for the Supreme Court in five successive cases to come in and intervene and grant sufficient relief to overturn the results. What I’m telling you is they’re trying to do that and they can’t.
Andrew: They can’t because there’s a limit. There’s no limit to what you can say to Q-Anon believers. You can tell ‘em to go to the basement of a pizza parlor that doesn’t have a basement. You can’t say that in a court pleading. We’ve seen this time and time again. I do, and I cut from the show because, you know, you’ve seen where CNN, MSNBC, have read from the “are you alleging there’s any fraud with these ballots?” Trump lawyer: “no, Your Honor.” Well then, we’re done here, aren’t we?
Thomas: [Laughs] Yeah.
Andrew: This is what they’re left with. They’re left with things like 592 ballots where, you know, they got the date wrong or they didn’t copy over their address properly. Move through, just completing the end of that recount case, because it really is illustrative.
In the recount case – remember, this is a 1973 election. Your ballot back then had a little tiny perforated square in the corner that was the number of the ballot. It was how they protected against fraud in handing out ballots at the polling places. Thomas Smith goes in, they check you off, they say oh, you get ballot number 293 then they had you ballot number 293 then they tell you, hey, before you put that in the box tear off the little 293 in the corner. That way your ballot will remain anonymous. Make sense?
Thomas: Hmm, okay.
Andrew: There were a dozen ballots in this race – again, 62,000 votes cast. There were a dozen people that put their ballot in the box and didn’t tear off the little perforated thingy. As you might imagine, the [Laughing] candidate who was ahead was like “don’t count those ballots” and the candidate who was behind was like “yes, go count those ballots!”
Thomas: Oh, they didn’t get counted as a default? Okay, gotcha.
Andrew: They were like nope; those are invalid votes. We’re not gonna count them. And the Pennsylvania Supreme Court was like “that’s stupid.”
Andrew: They didn’t quite say it that way. Here’s what they said: “Clearly, the invalidation of a ballot where the voter has complied with all instructions communicated to him and in the absence of any improper influence having been exerted, invalidation would necessarily amount to an unreasonable encroachment upon the franchise and the legislative enactment should not be interpreted to require such a result. To rule otherwise would unnecessarily condition the right to vote upon the proper discharge of the responsibility of an election official over whom the voter has no control.”
Andrew: Let’s unpack that a little bit. Those twelve voters said yeah, I didn’t tear off the little thing in the corner ‘cuz nobody told me too.
Andrew: There was no evidence, but it was just like right, I wasn’t told to tear off the corner, and they’re like “sorry, you gotta tear off the corner.” They said look, if you tried to vote in good faith, if you did everything you could, if the instructions were reasonable, you know what, go back, tear off the corner now so these people can remain anonymous, but we’re gonna count your votes. That’s what they did. They counted the votes, the votes got added to Robert C. Reed, that’s the Republican, by the way, and he became a judge.
Thomas: Oh, it flipped it?
Andrew: Joseph S. Walko became nothing.
Thomas: It flipped the election? It flipped it, just those?
Andrew: Yeah, it flipped the election.
Thomas: Wow, holy moly.
Andrew: On the results of counting the little perforated ballots.
Andrew: Today, yeah, you can look up – I did in prep for the show – Robert C. Reed. He does not have a Wikipedia page, but he does have a Ballotpedia page.
Thomas: Does he have an IMDB?
Andrew: Joseph S. Walko is- [Laughs] Yeah, right. I don’t, but you do. That seems fair. But yeah, Joseph S. Walko became nothing. That’s fine. I’m glad that happened. Reed got more votes, he should’ve won, good on him.
That’s what the court’s gonna say here, that’s what the court’s saying in all of these cases.
Andrew: You don’t need to be worried that the Supreme Court is gonna come in and craft some kind of crazy, they’re not being set up. It’s not gonna happen, and as with Bush v. Gore, the clock’s ticking. You don’t wanna have an indefinite amount of time to try and concoct something, it’s over.
We’re out of time for this segment so we’re gonna have to do it some other time, the instruction from Bill Barr to the Assistant Attorneys General for the Criminal Division, Civil Rights Division, National Security Division, instructing them to go out and prosecute election fraud that led to the resignation of the Chief of the Election Fraud Division, Richard Pilger. I will just tell you; I will link it in the show notes, this is another indication of the overarching theme here, which is the system is working. What Barr did was unconscionable, it’s in violation of DOJ guide- but you knew that already.
Andrew: It doesn’t matter, what it does is it authorizes investigations where those investigations should not be authorized.
Thomas: I wanna say, the system isn’t working.
Thomas: We might-
Thomas: We’re a plane where one of the engines has gone, part of the wing got, I dunno, eaten by something, and we tried to do the landing gear, oh that’s not sticking, but then Sully Sullenberger’s like well, we can still maybe land and not kill everybody on board possibly. Then we do that and then Andrew’s like “see? Plane works fine.” [Laughs]
Andrew: [Laughs] Fair! Fair, fair.
Andrew: Well our Sully Sullenberger here is Richard Pilger who, and again, it will be linked in the show notes, literally wrote the book here.
Andrew: The book in this case is called “Federal Prosecution of Election Offenses, 8th Edition.” He wrote that!
Andrew: This outlines, you will see references to what is called the 60-day policy. It is page 84 of Pilger’s book, and it says “overt criminal investigative measures should not ordinarily be taken in matters involving alleged fraud in the manner in which votes were cast or counted until the election in question has been concluded, its results certified, and all recounts and election contests concluded,” (end of quote). I had more, I could go on.
Andrew: But, yes, it says you do not bring criminal charges until an election is over because we can wait.
Andrew: Sure, somebody stole an election, we absolutely want to prosecute that guy, let’s not cast doubt on the veracity of legal votes.
Andrew: Let’s not undermine democracy.
Thomas: Yeah, it makes sense.
Andrew: Yeah, it makes total sense. It’s been government policy since ever and Bill Barr doesn’t care. It’s bad to rescind that. Again, it wasn’t rescinded, it was just a memo that is contrary to that. But I talked to three separate people at the Department of Justice. I actually had a copy of Pilger’s email before Vanita Gupta managed to leak it. I was really hoping to break news on the show with it.
Andrew: Yeah, you know, it went to 250 people so I’m not surprised it got out to somebody else, but yeah, one of my contacts at DOJ said “hey, I can get this memo to you. I’ve gotta take a screenshot and send it from my other account.”
Thomas: Jeez, real deepthroat situation here.
Andrew: Yeah, it was super cool, I was very, very excited to share it with you. But look, the bottom line is this says okay, I will entertain if you want to start bringing criminal charges? But there aren’t facts to support them.
Andrew: You know, can I rule out that one of Bill Barr’s henchmen doesn’t try and do something in the next three weeks? I can’t rule it out. But I can tell you that this is the desperate last set of plays from somebody that couldn’t manage to book the Four Seasons.
Andrew: You’re fine. It’s all gonna be fine.
Thomas: It finally made an appearance on the show! Four Seasons, we hadn’t even touched on it, it’s been done to death but oh my god it’s the best possible ending.
Andrew: It’s the best! It’s the best thing ever, yeah!
Thomas: It’s the best way for this administration to go out.
Andrew: Not with a bang-
Thomas: I cannot wait, when I am 70, I’ll be watching documentaries on this horrible time and I’ll just be waiting for that part. I’ll have my grandkids, “just wait. It gets bet- you have no idea how this is gonna end, it’s incredible.”
According to Andrew, to sum all this up, it’s going to be fine.
Andrew: It’s fine!
Thomas: He’s that dog with the whole thing on fire, and he says it’s gonna be fine. We’ll see.
Andrew: You’ve seen the meme of the firefighter rescuing that dog? [Laughs]
Andrew: That’s where we are!
Thomas: It’s Andrew and us, I guess.
Andrew: Yeah, that’s us.
[1:02:03.6] [Patron Shout Outs]
[1:05:10.1] [Segment Intro]
Thomas: And now it’s time for T3BE, see if I can go on a two question – I don’t remember. Anyway, let’s see if I can answer this one right.
Andrew: May be our shortest question ever on T3BE.
Andrew: Here you go: A cyclist sued a defendant corporation for injuries sustained when she was hit by a truck owned by the defendant and driven by its employee, who was making deliveries for the defendant.
Thomas: Oh wow, too real.
Andrew: The day after the accident, the employee visited the cyclist in the hospital and said, “I’m sorry for what I did.”
Thomas: Oh, not hearsay! [Groans]
Andrew: At trial, the employee has testified that he exercised due care.
Why is the cyclist’s testimony relating what the defendant’s employee said at the hospital admissible to prove negligence?
Thomas: Hmm. Interesting.
Andrew: So, it is admissible, why?
Thomas: Okay. First thing that jumps to my mind is statement against interest, we’ll see.
Andrew: A) It is a prior inconsistent statement.
Andrew: B) It is a statement against interest.
Thomas: Okay, okay.
Andrew: C) It is a statement by a party-opponent’s agent.
Andrew: Or D) It is a statement of then-existing state of mind.
Thomas: [Sighs] I hate hearsay so much. I assume that’s ultimately what this comes down to. Okay, cyclist, we’ve got the facts here. Amazon [Laughs]
Thomas: It’s all too real. And unfortunately, I know Amazon always gets away with it, so I can’t let that pollute my legal opinion here. But anyway, Amazon has a delivery truck and they make a poor worker not making enough money drive to make deliveries at a rapid pace that’s not achievable by humans, so that poor tired person his somebody. Then day after the accident the poor tired employee, because they actually have a heart unlike Amazon Corporation, visits and says “I’m so sorry for what I did.” Then at trial the employee, though, has had to testify that he exercised due care. It says why is the cyclist’s testimony – so the cyclist is getting to testify as to what the defendant said at the hospital. Like I said, my gut instinct was statement against interest, but all these look a little bit plausible.
So, A, it is a prior inconsistent statement? I mean, that’s possible. I mean, it is that. Is that a hearsay exception? Is that a hearsay exception that somehow takes precedence over the one I thought it was? Which is B, it is a statement against interest. Could be that. C, it is a statement by a party-opponent’s agent. I mean, all this. Could be all this stuff. I mean, the only complication I could see here is that the cyclist is suing the corporation and then the defendant employee is the one that said the thing. Maybe that means C, it’s a statement by a party opponent’s agent is better? [Sighs] I hate hearsay.
Or D, it is a statement of then-existing state of mind. That … eh, I dunno. That doesn’t seem great. I think I’ve narrowed it down to B or C. I think it’s either statement against interest, which was my first instinct, probably what I should go with, or C, statement by a party-opponent’s agent. If C were correct, it’s a statement by a party-opponent’s agent, that seems to suggest that any statement by a party-opponent’s agent could be admissible in this way no matter what they’re saying, and I think that’s enough for me to just go with my first instinct, which was B, it’s a statement against interest. That’s what I’m going with, final answer, we’ll see if I’m right.
Andrew: If you’d like to play along with Thomas you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your answer, your reasons therefore, we will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: And that’s our show! Thanks for the breakdown, Andrew, I know you didn’t get to even half of what you wanted to, but hey, those patrons get that newsletter, get the notes, extra stuff, and we’ll find a way to squeeze it in later! [Laughs] See you next time!